Civil Liberties:
The First Amendment
Bill of Rights
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First 10 Amendments to Constitution
Part of the “Deal” to Obtain State Ratification
of Constitution
Originally Limited National Government Only
Applied to States Through “Selective
Incorporation”
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Which rights have not yet been incorporated?
First Amendment
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“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a redress
of grievances.”
First Amendment
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Establishment Clause
Free Exercise Clause
Free Speech
Free Press
Right of Assembly
Right to Petition Government
First Amendment
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Establishment Clause
Free Exercise Clause
Free Speech
Free Press
Right of Assembly
Right to Petition Government
Establishment Clause
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Why?
Thomas Jefferson: “wall of separation”
Lemon Test: Government act must
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Have a secular purpose
In effect, neither advance nor inhibit religion
Not entangle government and religious
institutions excessively
Establishment Clause Issues
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Public Schools: prayer, moments of silence,
religious student groups, bible as a literary or
historical text, teaching evolution / intelligent
design
Private Schools: voucher programs, state
buying textbooks, supplemental instruction
Public religious displays at holidays
State-mandated 12 step programs
Free Exercise Clause
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Why?
Issues:
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Allowing parents to refuse medical treatment for
children on religious grounds
Allowing ceremonial use of illegal substances
Attempts to forbid animal sacrifice
Limits on ability of prisoners to practice their
religion
Freedom of Speech and Press
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Bad Tendency (- 1919)
Clear and Present Danger Doctrine
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Fighting Words (1942 – 1951)
Balancing Doctrine (1951 – 1960s)
In each case [courts] must ask whether the gravity of the
"evil," discounted by its improbability, justifies such invasion
of free speech as necessary to avoid the danger
FUNDAMENTAL FREEDOMS DOCTRINE
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Why??
Freedom of Speech and Press:
What Is Protected?
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Political speech
Artistic expression
“Speech plus”
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Symbolic speech/expression
Doctrine of Prior Restraint
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Government cannot prevent press from
publishing material
Applies even if publication can ultimately be
punished
Why?
What Is NOT Protected?
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Libel and Slander
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Allow damages for false statements that harm
someone’s reputation
Public figures must show “actual malice”
Obscenity – defined by community standards
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Appeals to prurient interest
Patently offensive
No literary, artistic, political or scientific value
Less Protected Speech
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Speech by students, especially pre-college
Commercial speech (advertising)